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2020 Supreme(Bom) 1286

IN THE HIGH COURT OF BOMBAY
Ujjal Bhuyan, J.
Devkumar Gopaldas Aggarwal and Ors. - Appellant
Vs.
The Board of Trustees of The Port of Mumbai and Ors. - Respondent
Writ Petition Nos. 482 of 2019, 1439, 1985, 2179, 2351, 2695, 2207 of 2018, Writ Petition (ST.) No. 2902 of 2018, Writ Petition Nos. 880, 881, 483, 768, 808, 1438, 1705, 1706, 2110, 2944, 3002, 3021 and 3401 of 2019
Decided On: 09-06-2020

Advocates Appeared:
For the Appellant :Viren Asar, Farid Karachiwala, Sneh Parikh, Mahek Chheda, Ahura Postwala i/by J. Sagar Associates, Shweta Shah, Jyoti Arora, Gaurav Gopal, Vyomi Chande i/by Wadia Ghandy and Company, Daraius Khambata, Senior Advocate i/b Dalal & Co., Shyam Mehta, Senior Advocate, Rupesh Geek, Sweta Shah and Shantanu Asar i/by Parinam Law Associates
For the Respondent:Shrihari Aney, Narendra Walawalka, Senior Advocates, Roopadaksha Basu, Harsha Asnani, i/by The Law Point, Soheb Sheikh i/by Desai Carrimjee and Mulla, K.H. Halai, Pratyush Ranjan and Yash Jain i/by Halai and Co.

Headnote:

Major Port Trusts Act, 1963 - Constitution of India,1950 - Article 226 – Appeal Against Conviction - Petitioners seek quashing of order - Writ Petition was argued by learned counsel for parties as lead case and any decision rendered therein will cover all remaining writ petitions - Therefore Writ Petition is taken up as lead case and factual narratives and submissions would be in the context of said writ petition - Rather quashing of all orders passed by respondent No.2 in said case and further seeks quashing of proceedings in Case - Respondent No. 1 is Board of Trustees of Port of Mumbai a statutory corporation constituted under provisions of Major Port Trusts Act 1963 - Originally predecessor in title of respondent No- 1 Secretary of State for India in Council had granted leasehold right of seven contiguous plots of land together admeasuring about square metres or thereabouts all situated at Road Mumbai by way of seven separate indentures of lease – Held, Supreme Court in - That was a criminal appeal against conviction under Sections 302 and 392 read with Section 34 IPC - Sentence awarded by Sessions Court was affirmed by High Court- related issue which cropped up was taking of measurement etc of convicted persons under Identification of Prisoners Act 1920 - While Section 3 dealt with taking of measurements etc of convicted persons Section 4 dealt with taking of measurements etc of non-convicted persons - Section 5 dealt with power of Magistrate to order a person to be measured or photographed - It was in that context that a contention was raised that power under Section 4 could not be exercised till rules are framed under Section 8- Negating such contention Supreme Court held that if such contention is accepted it would defeat very purpose and object for which Section 4 was enacted - writ petitions are dismissed

Ujjal Bhuyan, J.

1. This order will dispose of all the above noted writ petitions.

2. Heard Mr. Daraius Khambata and Mr. Shyam Mehta, learned senior counsel along with Mr. Viren Asar, learned counsel for the petitioners. Also heard Mr. Shrihari Aney and Mr. Narendra Walawalkar, learned senior counsel along with Mr. R. Basu and Mr. H. Asnani, learned counsel for respondent Nos. 1 and 2 in all the cases; Mr. K.H. Halai, learned counsel has appeared for respondent No. 3 in Writ Petition No. 482 of 2019; and Mr. Soheb Sheikh, learned counsel for respondent No. 4 in Writ Petition No. 482 of 2019.

3. Writ Petition No. 482 of 2019 was argued by learned counsel for the parties as the lead case and any decision rendered therein will cover all the remaining 20 writ petitions. Therefore, Writ Petition No. 482 of 2019 is taken up as the lead case and the factual narratives and submissions would be in the context of the said writ petition.

4. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of order dated 15.02.2018 passed by respondent No. 2 in Case No. EO/E(63)(63-A) of 2001, rather quashing of all the orders passed by respondent No. 2 in the said case, and further seeks quashing of proceedings in Case No. EO/E(63)(63-A) of 2001 as well. Be it stated that by the impugned order dated 15.02.2018, respondent No. 2 who is the Estate Officer of Mumbai Port Trust has rejected the application of the petitioners questioning his jurisdiction to adjudicate Case No. EO/E(63)(63-A) of 2001 under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

5. It may be mentioned that the writ petition was amended pursuant to order of this Court dated 05.07.2019.

Pleadings

6. Respondent No. 1 is the Board of Trustees of the Port of Mumbai, a statutory corporation constituted under the provisions of the Major Port Trusts Act, 1963. Originally predecessor in title of respondent No. 1 i.e., the Secretary of State for India in Council had granted leasehold right of seven contiguous plots of land together admeasuring about 29,434.75 square metres or thereabouts, all situated at Reay Road, Darukhana, Mumbai by way of seven separate indentures of lease to Mazgaon Manufacturing Company Limited and Framji Petit Spinning & Manufacturing Company Limited together with buildings, godowns etc. standing thereon. Particulars of the seven leases have been provided by the petitioners in the following two tabular formats:-

7. All the aforementioned leases contained identical terms and conditions but for varying periods though validity of all the seven leases were upto 10.12.1978 with right of renewal.

8. By two deeds of assignment dated 09.05.1935 and 09.07.1936, the lessees above named assigned their leasehold rights under the respective indentures of lease to one Shri Tulsiram Devidayal (since deceased). Thus the said late Tulsiram Devidayal had become the lessee of respondent No. 1 in respect of the land and property covered by the said seven indentures of lease, referred to hereinafter as 'the said premises'. Consequently, bills of lease rent were issued by respondent No. 1 in favour of late Tulsiram Devidayal as lessee of the said premises which were duly paid.

9. Late Tulsiram Devidayal out of his natural love and affection and for the benefit of his family created a private family trust known as 'Tulsiram Devidayal Trust' by a registered deed of settlement/trust deed dated 02.02.1943. Under the said deed of settlement late Tulsiram Devidayal settled the said premises upon Tulsiram Devidayal Property Trust i.e., petitioner No. 3, also referred to as the Trust, as per terms and conditions mentioned therein. Therefore, according to the petitioners, petitioner No. 3 i.e., the Trust became the lessee of respondent No. 1 with respect to the said premises.

10. Be it stated that under the said deed of settlement/trust deed dated 02.02.1943 late Tulsiram Devidayal appointed himself and his two sons Gopaldas Tulsiram Devidayal (

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